The judgment establishes the importance of identifying prescriptive rights, distinguishing between private and public rights over the same soil, and considering the impact of the absence of pleading special damage on entitlement to relief.

Niyogi, A J C—The plaintiff-respondent instituted this suit on the allegation that he had been enjoying, as an easement, peaceably and openly, as of right and without interruption, the site in suit as a passage for over 20 years and that the defendants-appellants had constructed a tin-shed on a part of the aforesaid land so as to block the access to his house. The plaintiff thus claimed a declaration of his right of way to his own dwelling-house and prayed for the removal of the tin shed wrongfully constructed by the defendants-appellants. The plaintiff also staged that the open space was recorded as a public lane. The defendants denied that it was a public lane and pleaded that it was their own private land. They also denied that the plaintiff had any right of way by prescription which could be interfered with by the plaintiff's constructing the tin shed. The Courts below held that the lane on which the defendants built the tin-shed was a public lane, and that it did not belong to the defendants-appellants. They also held that the plaintiff established his prescriptive right of way, as an approach to the southern door of his house. They therefore decreed the claim of the plaintiff.

2. In second appeal it is contended that the lower appellate Court misconstrued the documentary evidence and erroneously held that the site was a part of the public lane. It is also argued that the plaintiff was not entitled to any relief as he failed to plead special damage.

3. The contention that the lower appellate Court misconstrued the documentary evidence relates to the plea that the lane which is in existence now is not identical with the lane which is recorded in (Ex P-3), Settlement Map, as No. 793. The identity of the lane has been established by reference to plot 801 which is a lain temple. The lane appears in Ex. P-3 as starting from about the middle of the plot 801. On account of the fire in 1883 the houses which abutted on the lane were destroyed, while the Jain temple survived intact. The only method of identifying the lane now would be by reference to the Jain temple. P.W. 3, Yadao Rao, Revenue Inspector, prepared the plaintiff's plan by this method. The site of the Jain temple was recorded on the a badi khasra of 1863-64 (see Ex. P-4) in the name of one Jagannath Vishwanath Gurao, and Nago (P.W. 11) proves that this Jagannath was a pujari of the temple. There is also other evidence on record which has been considered in para 6 and paras 10 to 18 of the trial Court's judgment. The various documents Ex. P-1, P-2, P-3, P-4.P-7, P.8, P-10 and P-17 clearly show that the lane has not changed its position. Th3 appellant's learned Counsel argues that as a result of the fire of 1883, the lane must have changed its position. It appears to me that this is only ah assumption and this assumption would have no validity unless we make another assumption that some owners of lands abutting on this lane encroached upon the lane and others gave up the part of their land to make up the full breadth of the lane. If a finding of a Court of first appeal is based upon the construction of instruments of title or of contracts, statutes or any other documents which may be direct foundation of rights, the Court's view of the legal effect of such documents is open to question in second appeal. If however the lower appellate Court has simply to consider the history of the case by collecting together and putting in their chronological order saledeeds, mortgage-deeds and such other documents and all those are mere pieces of evidence involving no question of construction, then the inference which the Court draws from such documents is a fact which cannot be upset in second appeal. Goshain v. Puransingh, 1926 AIR(All) 542 . It is clear that the lower appellate Court's finding that the site in suit was a part of the public lane cannot be challenged.

4. As to the appellants' second contention that the plaintiff failed to plead special damage, I find that the pla